Wednesday, May 21, 2008

Reforming the System without re-opening the Constitution

Constitutional reform is always a tricky issue, but even moreso when it's a Conservative Parliament or Prime Minister that's trying to do it. Being a fundamentally liberal society, we as Canadians always get a little bit nervous when a Conservative tells us they're re-opening the Constitution, and that "everything's on the table". This makes us nervous, rightly or wrongly, because we've heard many times over our lives that the Conservatives want to deny us certain rights and freedoms, and golly gee, might this be the time they'll actually do it?

Yet, it seems as though the only time a government wants to consider re-opening the constitution, which should be a living document, able to be adapted to reflect the changing realities of the world in which we live, it's a Conservative government. The Liberals, when they're in power, seem more than content to leave it alone, and wait for the next cocky Tory to try to fiddle with it, so the voters can get antsy and put the Grits back in charge.

The problem is, that the constitution is more than just a political football - it's a document that governs our society, in some ways, even more than those whom we elect to govern us. We change those elected representatives frequently, and yet the constitution remains virtually unchanged after nearly 30 years. It NEEDS to change... it SHOULD change...

And we won't let Stephen Harper touch it. Which is probably for the best, all things considered.

So... things need to change, we don't trust the guy in charge to get his fingers into the constitution, and even if we DO kick him out, the Liberals won't do anything... what does that leave?

Simple... instead of CONstitutional reform, we just need some INSTItutional reform.

Example (I've brought this up before): The Governor General. Canada's ceremonial Head of State. S/he has the power to, in effect, veto bills passed by Parliament by refusing Royal Assent. This never, ever happens... but it can. The G.G. is appointed, according to the constitution, by the Queen on the advice of Canada's Prime Minister. Now, what if we wanted to ELECT a G.G., as a separate head of the Executive Branch, to take some power from the PMO? Would we need to open up and change the constitution?


Through an Act of Parliament, we could allow for a ballot during the next Federal election, featuring the candidates for the Governor General-ship. The current G.G. would retain their position long enough to swear-in the newly-elected Prime minister, and then tender their resignation to the Queen. The Prime Minister would then "make their recommendation" to the Queen for the replacement, following the expressed will of the people.

Fundamental change made to the institution, without constitutional reform.

Now, to the issue at hand: the Senate.

Most of my Eastern Canadian readers should just stop reading now, because as we ALL know, Albertans have crazy ideas about the Senate, and just won't leave well-enough alone.

As for the rest of you - here we go.

Do we even NEED a senate?

I argue yes. For 2 reasons - one of them good, the other pragmatic.

Firstly, we need a senate as it stands now, to diffuse some of the power that the Prime Minister's Office wields with otherwise absolute impunity. It's more difficult to see with a minority parliament, but consider the kind of legislation that MIGHT have been flying out the doors of parliament in a Harper Majority over the past 3 years. Without a senate, and with an appointed rubber-stamp operator for a G.G., this legislation would become the law of the land the moment it occurred to Steve that it might be a good idea. Now, some would certainly argue that's the risk of a democracy - that the government that the people elects is the one they deserve, and we've all got to live with the results. But in our current system, WITHOUT a senate, there is no check on the power of a Prime Minister in a majority parliament - s/he controls the legislative branch, appoints the judiciary, and essentially appoints the ceremonial executive. I don't know if we need as many checks and balances as our friends to the South - but surely one person can't control all THREE branches of government in a democracy? A senate, in the absence of reform to the appointment of the G.G., offers at least some semblance of a check.

Pragmatically, the election of "senators in waiting", or the routine election of senatorial candidates for "appointment" by the P.M. every four years, followed by a required stepping down at the drop of the writ, is possible without constitutional reform. The abolition of the senate requires constitutional reform - and, seeing as how it's been 26 years and we still can't even get Quebec to SIGN the bloody ORIGINAL, what do you think the outcome of those talks would be? It's just, well, easier to keep the senate around, and reform it, than it is to eliminate it. I know, easy isn't always right - usually, quite the opposite. But in this case, easy may also be the wise course.

So, E.S. has established, to his own satisfaction, that we need a Senate. Further, to make the Senate an expression of the sober second thought of the people, the election of senators should be held separate from parliamentary general elections (oh, lord, here we go... MORE elections for people to not vote in?), approximately 2 years after the general election (the mid-point of a legislature's sitting, with 4 year fixed-term general elections). This way, the people can choose to either affirm the work the government is doing by sending senators friendly to its cause, or express their disapproval by sending senators to hold the legislature - which may be a majority and otherwise above reproach - to account.

The Senate should be equal (Oh, lord, here we go again on this "equal thing"), with each province represented by 9 senators, and each territory by 3. This would put the senate at 99 members, a reduction of 6. Now, the more populated provinces are going to scream bloody murder about the equality thing - "why should PEI have as much power in the senate as Ontario? Why should a Newfoundland voter's senate vote be worth as much as 15 Quebec voters?". There's already a house of parliament where the more populous provinces carry more clout. It's called the House of Commons. As was pointed out in the "comments" section of Daveberta's recent post on this issue, the math really does allow someone to get elected to a majority in the House of Commons just by throwing a big middle finger up at the Atlantic Provinces, or at the West, and running purely for Ontario and Quebec. Hell, we had a parliament not too long ago where the second biggest party in the house ran candidates in ONE PROVINCE ONLY - surely, a senate made up of equal delegations from each province isn't THAT much of a threat to Ontario and Quebec? After all, legislation - no matter from WHICH house it originated - would still have to pass through both houses, which would include Ontario's 106 MP's and Quebec's 75. So, the "Screw Central Canada Act", Bill S-1, passed by the senate 81-18, would still be defeated by the House of Commons 181-127 (provided the Liberals chose to actually vote).

The reality, though, is this: The constitution clearly states that senatorial seats be distributed as follows:
"Ontario by twenty-four senators;
Quebec by twenty-four senators;
the Maritime Provinces and Prince Edward Island by twenty-four senators,
ten thereof representing Nova Scotia, ten thereof representing New Brunswick,
and four thereof representing Prince Edward Island;
the Western Provinces by twenty-four senators, six thereof representing
Manitoba, six thereof representing British Columbia, six thereof representing
Saskatchewan, and six thereof representing Alberta;
Newfoundland shall be entitled to be represented in the Senate by six
the Yukon Territory and the Northwest Territories shall be entitled to be
represented in the Senate by one member each. "

So, that defeats the idea of either reducing the senate by 6 (or by 1, for that matter), or of redistributing seats. Either would require a constitutional amendment, which would need to pass the "7/50 test" (signed onto by at least 7 provinces, representing at least 50% of the population), which means either Quebec or Ontario would need to sign on, reducing their senators from 24 to 9. Unlikely.

Do we need reform? Yes. Can we GET senate reform, without re-opening the constitution? To a point. We can change how people get in (elected, then appointed). We can require them to step down when the time comes to run once again. But we can't change the number of senators, or their distribution, without a futile attempt at changing the constitution - thus rendering the senate a haphazardly-democratic and representative parliamentary tool, at best. Ultimately, Quebec and Ontario continue to hold the majority of seats in the House of Commons, and are JUST shy of doing so in the Senate as well (48 of 105).

Once again, some would say "that's democracy, buddy... they've got, combined, 20 million of the country's 32 million residents. It's only right they wield the most power."

I can't disagree.

However, rule by majority can often become rule by the mob, with unfortunate results. When the minority rises up and decides to take matters into its own hands - as Quebec separatists have tried, and likely will again, against us horrible Anglos - the results for us as a unified country can be devastating. By ceding some of their constitutionally-guaranteed clout, Ontario or Quebec can go a long way to ensuring the long-term viability of this country, AND its constitution, by allowing the reform of the senate to reflect the equality of every province in the Senate, while the House of Commons continues to reflect the distribution of the country's population.

I hate to use our friends to the South as an example, but... does anyone think that New York is REALLY happy about having as many senators as Rhode Island (2 each, as does every state)? Doubtful... but then again, in the House of Representatives, New York has 29 members, and Rhode Island has 2. So I guess New York can live with its "relative impotence" in the Senate.

Ontario... you're always trying to be like New York. Now's your chance - suck it up, take one for the team, and do it in the name of national unity. It costs you nothing but a little imaginary prestige by having more useless senators than the rest of us... and it gains you REAL prestige, as the province that stood up and helped us amend our constitution, for the sake of democracy and progress.

Any province can propose this change, and it needs to make it through the House of Commons, be signed off on by the 7/50, and be passed by the Senate (THAT'S going to be the tough part).

But, even if the senate or Central Canada WON'T let constitutional change happen, we should introduce a bill proclaiming elections for senators-in-waiting and setting a fixed date for said elections, and requiring senators to tender their resignation en masse every 4 years, in advance of said elections. Raise the pay of senators as part of the bill, to give them incentive to pass the bill and take a chance at losing their seat. Get the bill past the House, past the Senate, and get Royal Assent from the G.G., and you've made a real change to how things are done, without a constitutional kerfuffle.

And, if you can't get that done, then at least take a good, hard look at the Enlightened Savage's proposal to modernize and democratize the position of Governor General. SOME checks, oversight and democratic accountability is better than none (or, if not "none", at least "you don't like it then kick us out in 4 years - now, let's see how much damage we can do pursuing our own agenda, stacking the senate and Supreme Court with our parliamentary majority in the next 48 months").


Anonymous said...

I've yet to see a logical argument as to why elected senators are better than appointed ones.

Elections guarantee someone who is popular and appealing, but give no guarantee of competence or intelligence. In the days of the sound-bite and the headline, elections give power to those with simple ideas, media-connections, and pearly whites. None of which implies sober-second thought whatsoever.

Sure, it feels better that we the people, who've fallen in love with pet-rocks, Bre-X, beanie babies, etc., get to put forward our whims of the moment onto a piece of paper and feel like, "Hey, we're taking a hand!" but how are we taking any more of a hand than when we elect the person who does the appointment? And who can do the appointment without having to worry about how photogenic the appointee is, or whether they can express themselves in phrases that can fit in 52 point font and resonate.

Term limits are also a poor idea because part of what makes the senate an effective form of sober-second thought is that they serve as a longer term view of Canada as a whole. As said on Get Rich or Die Trying, the preponderance of liberal senators exists because we have had a preponderance of liberal governments recently.

In that way, the senate serves to smooth out our transitions. If Harper is a sign of a fundamental shift in Canadian preferences, then slowly the senate will change to reflect that. However, the key word is slowly. This prevents the country from changing radically every few years, something which simply isn't good at ensuring stability.

DJ Kelly said...

I'm with you 100% on this one EnSav.

The Senate as it stands right now is entirely usless. Tradition and a being a political tool are not good reasons to spend the kind of dough taxpayers shell out to the lifers plopped into a Senate seat with no input from Canadian citizens. (At least with laws, Canadians can vote in a different gov that could change the laws. You can't ditch a senator though.)

But the senate could be useful in helping everyone have their say by following the steps you outline above. Every province considered equal. Rep by pop in the Commons, rep by geography in the senate. (Something that has precident in many places including the 7/50 rule.)

And Ontario and Quebec should let this one go. Why? Because the original "rep by pop" argument they put forward (and rightfully won) is the same argument that can be used here by the smaller provinces such as PEI and even, yes, Alberta.

It's just plain fair.